A Sydney school has been ordered to pay damages to a former student following a recent judgment in the Supreme Court of New South Wales. In Oyston v St Patrick's College  NSWSC 269, the Court accepted that the school had policies in place to protect against bullying - but it failed to implement them.
The judgment of the Supreme Court on 14 April 2011 is the most recent pronouncement by a New South Wales Court that considers the duties upon a school to effectively respond to complaints about bullying.
The case raises two issues of particular interest to educational institutions. First, the limits to which policies to address bullying can be relied upon and secondly the need to balance the duties and pastoral care obligations to those who are bullied, and those who bully.
Ms Oyston alleged that she was constantly bullied during her three years at the school, that she reported some bullying and that the reaction of the school was inadequate. Her case was that the school's policies and practices in relation to bullying, as implemented in her case, failed to protect her from a recognised and foreseeable risk of harm when she was subject to relentless bullying between 2002 and 2005, when her father withdrew her from the school.
The school's case was that Ms Oyston was not the subject of such bullying, or if she was, the circumstances were not such as to allow the school to be aware of the bullying to which she was being subjected. At the very least, the school argued, there was contributory negligence by Ms Oyston in failing to complain.
Duty of care
Negligence is defined in section 5 of the Civil Liability Act as "failure to exercise reasonable skill and care". The Court referred to a decision of the High Court in which this duty within an education context was stated in the following terms:
The limit of this duty of care is specified in section 5B of the Civil Liability Act 2002 which provides:
"5B General Principles
1. A person is not negligent in failing to take precautions against a risk of harm unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known),
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the persons position would have taken those precautions."
The Court accepted that Ms Oyston's recollections were deficient and that some of her evidence was "seemingly irreconcilable". Nevertheless the Court held that she had been bullied and that she had not been contributorily negligent because she had in fact complained and there was documentary evidence of her complaints.
The school relied on its policies "Student Conduct Policies and procedures" and "Personal Protection and Respect Policy", both of which were printed in the annual school diary given to each pupil.
Both the school and Ms Oyston introduced "expert" evidence about the effectiveness of anti bullying processes in the school. The evidence was inconsistent as one might expect.
Overall the Court seemed to take the view that because the bullying occurred then the policy had not worked. It therefore followed that the school had not adhered to and ensured that its policy was enforced. The school was found liable to Ms Oyston. The Court particularly commented that, in dealing with such complaints as were received from Ms Oyston on bullying, the school did not adopt the correct balance between its duties towards the bullying students and its duties towards the student being bullied. The school had a policy to ensure that those who perpetrated the bullying were also subject to pastoral care with a view to improvement and extinguishment of the bullying. The Court decision suggested that, in being cautious in dealing with those who were perpetrating the bullying, the school gave insufficient protection to Ms Oyston from ongoing bullying.
There were issues regarding Ms Oyston's pre-existing mental conditions and family background. All these issues are extensively examined in the case. Ms Oyston claimed more than $500,000 in damages. As at the date of this article, the Court has not made a formal award of damages which will be assessed under the Civil Liability Act (NSW) 2002. However, the Court has determined that the plaintiff is entitled to non-economic loss damages of 20% of the most extreme case. That equates to $17,500. She will also be awarded one year's loss of earnings as a result of her need to repeat Year 9 at her new school which was held to be a direct consequence of the bullying which she suffered. She was also awarded an additional buffer of $50,000 for future economic loss. In addition, she will be awarded a sum which reflects 20-25 sessions of psychotherapy with monthly follow ups for a further year and second monthly follow ups for a further year.
Obligations of schools
The challenge facing schools in dealing with bullying is a major issue for educators. Experts do not appear to be unanimously agreed about how to best prevent bullying or how to deal with it if it occurs. The experts called by the parties disagreed on many issues, however they did agree that if complaints about bullying arose:
"1. The complaint should have been investigated.
2. If shown to be true then any or all of the following actions may have followed:
(a) Conflict resolution procedures such as restorative conferences or peer mediation arranged;
(b) Counselling for the plaintiff and for the perpetrators by the relevant pastoral care personnel (for example year coordinators);
(c) Arrangement of suitable peer support for the plaintiff;
(d) Parental notification to carers of all parties
(e) Counselling sessions by trained counsellors remembering that participation in counselling is voluntary;
(f) If appropriate, punishment sanction should have been imposed, such as the detention system and restorative questionnaires evidently in use. This could have included short suspension, but only in the case of repeated harassment of the plaintiff and only as a last resort;
(g) Follow up monitoring of both the plaintiff and alleged perpetrators;
3. Appropriate records should have been maintained in the student files or students concerned.
4. Consideration should have been given to cohort or school assemblies to address personal relationships."
The points for educational institutions to take from this case are as follows:
- Just having policies to deal with bullying is not enough - steps must be taken to ensure that policies are understood and carried out by the staff and students of the school. It is important to be able to evidence the steps taken in this regard.
- Even then schools may face difficulty in bullying cases because of the subtle nature of bullying and the apparent pressure to ensure that the policies are enforced at all times.
- A balance needs to be drawn between the rights of and obligations to all parties - both the person bullied and the perpetrators.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.